Nassau County Gang Assault in the Second Degree

N.Y. Pen. Law § 120.06

Assault is the criminal charge you will face if you intentionally or recklessly cause physical injury to someone else. In other words, it is an act of violence against another person causing that person harm. If the assault is perpetrated by at least 3 people, then the offense is not simply assault, it is raised to gang assault. While the name of this crime makes it seem as if the assault must be committed by members of an identifiable street gang. This is not the case. For purposes of the assault statute a "gang" is simply 3 or more people assaulting another person. With the designation of "gang" the assault becomes more serious and the penalties more severe. Thus, if you have been charged with gang assault in the second degree it is important that you immediately contact an experienced Nassau County Gang Assault in the Second Degree Lawyer who will listen to the facts of your case, explain to you the criminal process, and vigorously defend you until the case is resolved.

There are 2 degrees of gang assault: gang assault in the second degree and gang assault in the first degree. Gang assault in the second degree is the less serious offense. You will face this charge if you assault another person and are aided in the assault by at least 2 other people. Your intent must have been to cause physical injury and as a result of the assault, the victim must have actually suffered serious physical injury. It is a Class C felony. Physical injury is defined as one that causes an impairment of physical condition or substantial pain, while serious physical injury is one that is so serious that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00

In People v. Rimmen, 794 N.Y.S.2d 246 (2005), defendant Timothy Rimmen was convicted of gang assault in the second degree. Rimmen and 2 others assaulted the victim, causing the victim to sustain a fractured skull and injury to the brain requiring surgery.

In People v. Nicholson, 952 N.Y.S.2d 193 (2012) defendant Lloyd Nicholson was convicted of gang assault in the second degree. Nicholson directed a group of several people to attack 2 other people. He observed as the attacked occurred. Nicholson argued that he did not commit gang assault because he told the group not to strike the faces of the victims. He argued that this was evidence that he did not have intent to cause physical harm. However, the court did not agree.

Keep in mind that in order to be convicted of gang assault in the second degree it is not necessary for you to have personally caused injury to the victim or even touched the victim. The statute only requires that you have in some way aided in the assault. For example, in People v. Williams, 787 N.Y.S.2d 399 (2005), defendant Michael Williams was convicted of gang assault in the second degree even though he merely watched the assault. The court concluded that Williams' presence presented a sufficient threat of additional violence. While in People v. Nicholson defendant Nicholson was convicted of gang assault because even though he did not actively participate in the violence he ordered the assault and was present when it occurred.

Defenses to a Gang Assault Charge

Type of Injury. A gang assault in the second degree charge is based on the defendant intending to cause physical injury and the victim suffering serious physical injury. If either of these factors is absent, you have a valid defense against the charge. The court will not consider an injury as serious unless the injury is life-threatening or permanently disfiguring. Even multiple stab wounds may not necessarily cause serious physical injuries. For example, in People v. Tucker, 936 N.Y.S.2d 386 (2012), the defendant was charged with gang assault. The victim was stabbed multiple times. He required stitches. However, the victim never lost consciousness, was not in shock, and no internal organs were punctured. Furthermore, while the treating physician indicated that such stab wounds could have caused a substantial risk of death, he did not say that they did cause a substantial risk of death. The court concluded that the victim did not suffer a serious physical injury.

Arrest and Arraignment

If you are suspected of gang assault in the second degree you will be arrested and taken into custody. You will initially go to Central Booking, where you will remain for several hours until you are arraigned. An arraignment is a hearing before a judge at which you are formally charged. While at the time of your arrest you may be under the impression that you are being charged with just gang assault in the second degree by the time you are arraigned the prosecutor would have had time to review your case as well as your criminal background. As a result the prosecutor may decide that you should be charged with a more serious crime such as gang assault in the first degree. Or the prosecutor may decide to add one or more additional charges such as assault in the first or second degree. At your arraignment you will also find out the amount of your bail, if you will be held without bail, or if you will be permitted to be released on your own recognizance. Finally, you will be told the date of your next hearing. After the arraignment there may be several hearings and meetings prior to your trial. During this time the prosecutor may offer you a plea agreement. A plea agreement usually entails the defendant agreeing to plead guilty to a lesser charge. If you are unable to agree on a plea agreement with the prosecutor, you will ultimately have a trial.

Consequences of a Gang Assault Conviction

If you are convicted of gang assault in the second degree your sentence will include prison, payment of fines and fees, and post-release supervision. In addition, an Order of Protection may be issued against you.

Prison

Assault in the second degree is a Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because gang assault in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. Your sentence will be determinate, meaning that it will be a set period of years and not a range of years. The actual length of your prison sentence will depend on factors such as your prior criminal record.

Prior convictions: Prior convictions include felony convictions within the last 10 years.

Non-Violent Predicate: A non-violent felony conviction within the last 10 years.

Violent Predicate: A violent felony conviction within the last 10 years.

Persistent Felony Offender: At least 2 prior felony convictions.

Even if you have no prior convictions the minimum prison sentence you will receive is 2 years. The court will not have the option of sentencing you to no prison time. If your status is that of a non-violent predicate offender the court will sentence you to at least 3 years for a gang assault in the second degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 5 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 12-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

For example, in People v. Villanueva, 35 A.D.3d 229 (20060 defendant Villanueva was convicted of gang assault in the second degree based on kicking and punching the victim in the face, along with 2 others. Since Villanueva was a second violent felony offender he was sentenced to 12 years in prison.

Post-Release Supervision

If you are convicted of gang assault in the second degree, in addition to being sentenced to prison you will also be sentenced to a term of post-release supervision of 1.5-3 years. N.Y. Pen. Law § 70.45(e). There will be several rules that you must follow while you are on post-release supervision. Such rules may include that:

You must not commit a crime

You must not associate with other people who you know have criminal records

You must not patronize disreputable places

You must not possess a controlled substance or drug paraphernalia

You must consent to warrantless searches

You must submit to home visits by your Parole Officer

You must regularly report to your Parole Officer

You cannot leave the State of New York without permission

You must now own, possess or purchase a gun

You must refrain from consuming alcohol

You must submit to drug testing

You must stick to a curfew

You must have job

If you violate any of the terms of your post-release supervision your post-release supervision may be revoked resulting you having to go back to prison.

Fines, Fees and Restitution

Being convicted of gang assault will also have substantial financial consequences as you will be required to pay a fine, fees and restitution. The judge may order you to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay parole supervision fees of $30 per month.

Another financial consequence of a gang assault in the second degree conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

If you do not pay the ordered fine, fee or restitution, you may be charged with a crime and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Orders of Protection

As part of the criminal process the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. In simple terms, an Order of Protection is a court order requiring you to stay away from another person. Such orders are usually very specific about what you cannot do and what you must do. For example, an Order of Protection may state that you are not permitted to go near the victim or the victim's place of employment. If you live with the victim you may be ordered to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection you could face additional criminal charges. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

Long-Term Consequences

Even if you are sentenced to just the minimum prison sentence of 2 years there will be consequences of being convicted of gang assault in the second degree that will last for years after you are released from prison, complete your post-release supervision and pay fees, fines and restitution. You will have a criminal record that will make several aspects of your life more challenging such as getting a job. In fact, you will be barred from working in certain professions such as being a teacher or a lawyer. In addition, you will not be able to own a gun, serve in the military, or serve on juries. You will also not be able to receive certain government benefits such as welfare or federally funded housing.

Being arrested for gang assault is serious. If you are convicted many aspects of your life may change forever. However, there may be defenses to a charge of gang assault in the second degree that only an experienced practitioner will understand. Thus, if you have been arrested for gang assault in the second degree or any assault charge, it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with gang assault as well as other assault crimes, menacing, reckless endangerment, stalking, and rape. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations:

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